LIABILITY OF FOREIGNERS UNDER IPC
Author: Sidhant Somani
Co-Author: Savnie Sherkar
INTRODUCTION
The term liability refers to a state of being responsible for a particular conduct or an act which is prohibited by the law. This research paper in the, general sense deal with the liability of foreigners under the Indian Penal Code with reference to the Jurisdiction of the above act in matters where foreigners are subject to certain kinds of criminal liability. Jurisdiction is a term which has been derived from two words of Latin origin namely ‘Juris’ and ‘Dicere’. The term Juris means the Law and the term Dicere refer to Speak. Thus Jurisdiction refers to any dominating authority or power constituted or given to any legal body within the purview of, it can carry out its function. These powers or authority is generally given to various law enforcement agencies, political or government office, any judicial body or Courts etc. The major reason to study jurisdiction to, find the liability of foreigners and related bodies or agencies is to understand the limit of judicial authority the provided statute i.e. IPC has over the related matters. The major reason to study the above said concept is to understand and ensure that courts adjudicate only those matters which fall within the limited scope of its territorial jurisdiction and pecuniary limits and do not exceed the same.[1]
AIM OF THE PROJECT
- To research about the Jurisdiction of the Indian Penal Code.
- To research about the liability of different types of foreign bodies under the above jurisdiction.
- To research upon various case laws related to the Jurisdiction and Liability of foreigners under IPC.
- To suggest certain reformative measures regarding various sections of IPC that deal with the matters of jurisdiction.
RESEARCH METHODOLOGY
In order to approach the prescribed objectives of study, doctrinal model of research design is proposed, intensive literature review on the subject will be applied and the issues under study would be examined in a systematic manner. This doctrinal work adopted for the writing of research work is both analytical and descriptive. The researcher had make an effort to critically examine the primary sources like books, newspapers, and e-resources. Opinions of research scholars, academicians, and other experts including the advocates who have dealt with this subject will be used as real contribution to research. E-resources have majorly contributed in research for getting the most relevant and latest information on the web which has helped the researcher to explore the subject through various dimensions.
TYPES OF JURISDICTION
In a court system there are three main types of jurisdiction and they are as follows:-
- The subject matter of Jurisdiction: This potentially talks about the matters which a court has the authority to adjudicate. A particular type of court deals exclusively with that kinds of matter only. For example a Family Court deals with family matters only and nothing else. In the same way a debt recovery tribunal deals in its specified matters only.
- Territorial Jurisdiction: Any court while dealing with a case needs to ascertain whether that case comes under the vicinity of a particular geographical limit within which it has the power to adjudicate. This vicinity or this particular geographical limit of the court is termed as Territorial Jurisdiction.
- In Personam Jurisdiction: A court always has certain jurisdiction over a natural body or any legal body such as a company. This Jurisdiction of the court is termed as In Personam Jurisdiction. This a basically the authority by which the court determines the rights and liabilities of the parties in question.[2]
Every country has its own facet of law which deals with the criminal matters of that country. The Indian criminal code basically is the Indian Penal Code drafted in the year 1860 which came into effect on 1862. This is a comprehensive code intended to cover all substantial facets of criminal law. Section 2 of the Indian Penal Code deals with the intra territorial Jurisdiction while section 3 and section 4 of the same deals with the extra territorial jurisdiction of the Court.[3] Theodre Roosevelt rightly said “No man is above the law, no one is below the law; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favor.”
INTRA TERRITORIALJURISDICTION AND EXTRA TERRITORIAL JURISDICTION OF THE IPC
Section 2 of the Indian Penal Code deals with the intra territorial jurisdiction and makes the code binding and universally applicable on everyone regarding every act or provisions which are contrary to the provisions of the same. On the other hand, the issue of extra territorial jurisdiction is dealt by section 3 and section 4 of the IPC which talks about how a person cannot be held liable if he commits an act outside the territory of India.
i) Intra-Territorial Jurisdiction:
Section 2 of the IPC states that “Punishment of offences committed within India.—every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within” [4] This section basically talks about the fact that any offence or a particular act contrary to the provisions of this statute within the geographical territories of India would be deemed to be a criminal offence and anyone found guilty of the same would be punishable as per the provisions of the statute itself. This section elaborates on the territorial jurisdiction of the country implying that the geographical areas under the union of India are governed by this penal code. One needs to know that the geographical boundaries of any nation extends up to 12 nautical miles in the sea and hence all this comes under the territorial jurisdiction on the Indian Penal Code. This is known as the Maritime Territory of India. This is clearly mentioned in the notification of Government of India 1967 published on 30th September. Further all person who commit an offence are liable under this statute irrespective of their nationality, rank, caste, creed etc. Thus foreigners committing criminal offences in India are also liable as per the general rule but there are certain exceptions to this which will be referred to later in this paper.[5]
A landmark judgment on the above lines is Emp. V/s. Kastya Rama[6]. In this case the accused went three miles into the sea from the Indian land territory and removed the fishing stakes belonging to the complainant. It was held that he was guilty as the jurisdiction of the IPC extends up to the limit of 12 miles. Further the Court held that all persons irrespective of their caste, nationality, creed etc are liable for the offence they commit under IPC.
Thus arguing on the above lines, if a foreigner commits any offence in our homeland India, then he or she cannot plead that since that particular act is not an offence in their home country, they should not be held guilty. Just being a citizen of any different country would not absolve a person from being held liable under this act. For example if a person from Russia commits theft in India, he would be liable as per the provisions of the IPC irrespective of his nationality. It must be noted that foreign national who come to our homeland are granted protection by these laws and thus they are expected to comply and abide by them. Thus liability will also be applicable to them if they commit any act contrary to any statute.
There is a very famous landmark judgment of these lines and that is Crown v/s. Esop[7] wherein the accused was indicted for an unnatural offence on board an East India Ship. Which was lying in St. Katherines dock. He pleaded that he was the native of Baghdad and that it was not an offence in his home country. However this was not considered a legal defense as the nationality of a person is no valid defense in a criminal case.
Another important landmark judgment on these lines if of Mobarak Ali vs. State of Bombay[8] wherein a Pakistani citizen while in Karachi made a false representation and made the complainant pay him rupees five lakh for a particular shipment of rice. However this shipment of rice was never delivered to him. Later on the accused was arrested from England and brought to India through the process of extradition and the Supreme Court held that the section 2 of the Indian Penal code includes not only the citizens of our country but also foreigners who commit the theft inside the territories of India.
However it does not include non-judicial persons like companies or corporations that cannot be convicted for any individual offence like murder, dacoit etc. Principles of Vicarious liabilities and lifting of corporate veils are used in such situations to determine their liabilities. Thus it is quite clearly proved that any person standing on the territory of India irrespective of his nationality is liable as per IPC. Thus all foreigners who are present in our country are responsible for their acts.[9] However no rule exists without exception and there are certain exceptions to the above rule as set by section 2 of IPC
There are certain classes of people who are not held liable according this section even when they are present within the geographical territory of India. They are:
- The President of India and the Governor of States are not held liable for criminal acts inside the territory of India. Article 361 of the Indian Constitution separates the President of India and the Governor from the normal citizens by exempting them from civil and criminal proceedings.
- Article 361 of the Indian Constitution states that “Protection of President and Governors and Rajpramukhs:
(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties: Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Governor of India or the Government of a State
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office
(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office
(4) any civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.[10]”
- Foreign Sovereign are the exception to the rule that foreigners are also liable under the Indian Penal Code as they are exempted and cannot be punished as per the rules of International Law. The major reason for this particular exception is that the jurisdiction of courts over foreign sovereigns of any other country would be incompatible with the independence and sovereign of the foreign ambassador. Secondly the foreign official coming inside the territory of any nation is guaranteed protection from such laws due to his independent sovereign status which has to be respected. Whatever may be the reason for the same, the states do extend this immunity to the foreign officials on the principles of comity and reciprocity. [11] In the landmark case of Schooner Exchange V/s. m. Faddon[12] Chief justice Marshall observed that “one Sovereign being bound by the obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license or in confidence that the immunities belonging to his independent sovereign nation, though not expressly stipulated, are reserved by implication, and will be extended to him.”
- Alien enemy military persons cannot be convicted under this Penal Code for their acts of war crimes. For that there is a special martial law and other international laws guarding the above acts. However if he commits an act not in relation with the war or any offence expressly prohibited by the code unconnected to the war, then he will be liable for such acts and the criminal courts and convict him.
- Foreign Army if by the consent of one state is inside the national territory then such army officials and members are exempted from the criminal liabilities
- As per the rules of International Law, warships which are in the maritime territory of one nation should be exempted from its criminal acts for the acts they commit.[13] However the native state can curtail or limit this immunity.
ii) Extra Territorial Jurisdiction:
Extra territorial jurisdiction refers to the situation wherein an offence is committed in a particular state but the accused is tried and convicted in some other state where he has not committed the crime. Section 3 and section 4 of the IPC deal with extra territorial jurisdiction in India. Section 3 of the IPC is read as “Punishment of offences committed beyond, but which by law may be tried within, India.—Any person liable, by any [Indian law] to be tried for an offence committed beyond [India] shall be dealt with according to the provisions of this Code for any act committed beyond [India] in the same manner as if such act had been committed within [India].”[14] This denotes that any person Indian or Foreigner if is governed by the IPC will be dealt for any offence committed by him in India as per the laws here irrespective of the fact whether he commits the offence in India or not.
Similarly, section 4 of the Indian Penal code expands the meaning and scope of section 3 regarding extra territorial jurisdiction. Section 4 states that: the jurisdiction of the Code is applicable to any person beyond the territory of India who commits a crime. The Section also covers the following category of people:
“1. Any Indian citizen who is present beyond the territory of India and has committed a wrong,
- Any person travelling through any ship or aircraft which is registered in India,
- Any person present in any place which is not under the territorial limit of India and targets the computer resources present in India.[15]”
FOREIGNERS COMMITTING OFFENCE IN INDIA
Various incidents over the years and detailed study on the criminal law jurisprudence has made it clear that any offence committed by foreigners on Indian soil will be dealt in consonance with the laws of India. In situations where the offence has been committed by him without being physically present within in the territory of India will be dealt in the same way as if he was there physically. There are various judicial pronouncements depicting the above principle. One of the leading case in Nazar Mohammad vs. The State[16]. In this case the court held that any foreign citizen committing a criminal offence would be liable according to the laws of India and that the pre-requisite of section 3 and 4 of IPC does not include physical presence but only that a wrong should have taken place. The foreign citizen cannot plead ignorance of law to be absolved from the charges. However, this plea can be taken up during mitigation of sentence.
In another leading case of Vishnu Dutt Sharma and ors. Vs. State[17], the Supreme Court of India held that even if the offence is committed by a foreigner and certain elements of the crime are present inside the territory of India, then it could have been said that the offence was committed in India and the Indian laws will be applicable to judge the liability of the accused. Similarly in the case of Lee Kun Hee and Ors. Vs, The State of U.P.[18], the Supreme Court of India held that if certain elements of crimes happen in India then the laws of India are applicable to the people committing those offences whether Indian citizen or foreign citizen. One needs to understand that section 3 and 4 of the IPC talks about all the acts committed within the territorial limits of India. These limits are specified in section 1 of the IPC and are discussed earlier in this research project. Thus even foreigners who commit these offences within the territory of India are liable and are treated in the same way as if they are the citizens of this country. The territory of India comprises of:
- Territories of the states,
- Union territories which are specified in the first schedule, and
- Other acquired territories
FOREIGNERS LIABILITY AFTER ACQUIRING INDIAN CITIZENSHIP
As mentioned earlier, the important element that needs to be proved in order hold someone liable is that the offence must be committed inside the territorial limits of the India as mentioned in section 1 of the IPC. Thus if a foreigner commits an act outside India and then acquires Indian citizenship, he or she will not be within the purview of the IPC. On the contrary if the act has been committed within the territorial jurisdiction of India, the person will be held liable under IPC even if he does or does not acquire Indian citizenship.
An important case law highlighting the above principle is Fatma bibi Ahmed Patel vs. The State of Gujarat[19]. In this case the Supreme Court of India held that in order for an offence to come under the purview of section 3 and 4 of the IPC, it has to be committed within the territorial jurisdiction of India and thus any criminal act committed by any foreigner outside India and then acquiring the Indian citizenship will not be held liable under the IPC.
SECTION 3 & 4 AND SECTION 188 OF THE CRIMINAL PROCEDURE CODE
Section 188 of the Criminal Procedure, 1973 states that: “When a wrong is committed outside the territory of India:
- By any citizen of India, either on the high sea or elsewhere, or
- By any non-citizen on ship or aircraft which is registered in India.
He may be made liable in accordance with the provisions of Indian laws as if the offence has been committed within the territory of India.[20]”
Thus relating the above provisions with the concept of extra territorial jurisdiction as explained in section 3 and section 4 of the IPC any act committed by a citizen or a foreigner outside the territory of India but the act has resulted in consequences mentioned in the IPC, the person will be dealt according to the provisions of the Indian Penal Code and foreigners are no exception to this.
ADMIRALTY JURISDICTION
Admiralty jurisdiction refers to the jurisdiction of offences which are committed on high seas outside the territorial jurisdiction of any country. These offences can be committed by a citizen of India or any non-citizen. The extension of Admiralty Jurisdiction is over the cases which involve the following offences:
- Offences which are committed on the Indian ships on the high seas;
- Offences which are committed on foreign ships within Indian territorial waters.[21]
Ships which are not of India are considered to be foreign or alien citizens only. Thus any foreign ship committing a criminal act within territorial waters of India will be dealt in accordance with the Indian Penal code only. Further the nationality of any ship is determined by the flag which it carries. Thus a ship with Indian flag is considered to be within the territorial jurisdiction of India. They are like the floating islands of our country. Thus any act by an Indian or any foreigner on these ships will be dealt according the Indian Penal Code only. However various international laws and rules of the UN are also considered while deciding on matters like this. The prime example of this is a very famous Enricae Lexie case wherein two Italian fisherman were found guilty of murder around 20.5 nautical miles away from the territory of India. A fir was registered in India and the Supreme Court also held that India has the jurisdiction in matters like these but ultimately this matter went to the International Court of arbitration.
IS THERE A NEED FOR REFORM IN THESE LAWS?
Law as we all know is and always has been a dynamic subject changing from time to time. The world is developing at a very rapid space and thus there is a need to increase the scope and meaning of different sections related to the jurisdiction of the IPC. Section 3 and section 4 of IPC that deal with extra territorial jurisdiction takes into account the meaning of territory of India as defined under section 18 of the said act. However there is a confusion regarding the number of miles in the sea up-to where Indian Jurisdiction is applicable. Further various international laws and conventions have put a lot of restrictions on countries to deal with cases in high seas. Needless to say ships with different country’s flags inside the territory of India might further create confusions as to whose jurisdiction applies in such cases. Thus there is no standard rule or any law in high seas which is in consonance with the local laws of India, applicable to foreigners and citizens.
In today’s modern era, with the development of technology a new field has emerged which is called cyberspace. The cyber space is a virtual area which can be accessed from anywhere and the origin of such areas is difficult to configure. No proper law is there in India to deal with such situations. Further the anonymity of the internet makes it even more difficult to find the culprits let alone hold them accountable. Criminal activities can be can be carried out by foreigners outside the territory of India and the victim could be someone from within the territory. Thus there needs specific laws in areas like these.
CONCLUSION
Jurisdiction is a very important domain and the scope of this does not limit to physical boundaries but goes beyond that and includes people. These people can be citizens and foreigners. Foreigners are not immune to everything they do and are prohibited from carrying out any criminal activity in India. This ensures the safety of citizens of India and keeps a check on the activities of these people who are not the citizens. The laws provide a clear preview as to who is liable which further creates no confusion in criminal matters. As studies earlier, the major reason to study jurisdiction to, find the liability of foreigners and related bodies or agencies is to understand the limit of judicial authority the provided statute i.e. IPC has over the related matters.
[1] Paliwal, Mariya. “Jurisdiction under IPC.” www.blog.iplaeders.in. 10 Dec. 2019, blog.ipleaders.in/jurisdiction-under-ipc/. Accessed 6 Sep. 2021.
[2] Anonymous. “Jurisdiction.” www.lawtimesjournal.in. 9 Apr. 2016, lawtimesjournal.in/jurisdiction-2/. Accessed 10 Sep. 2021.
[3] Paliwal, Mariya. “Jurisdiction under IPC.” www.blog.iplaeders.in. 10 Dec. 2019, blog.ipleaders.in/jurisdiction-under-ipc/. Accessed 6 Sep. 2021.
[4] Kumar, Abhishek. “Determining Jurisdiction in India.” www.singhania.in. 21 June 2017, singhania.in/blog/determining-jurisdiction-in-india. Accessed 11 Sep. 2021.
[5] “Indian Penal Code.” Law Commission of India, Government of India, no. 42 report, 1971.
[6] (1871) 8 Bom H.C.R. 63
[7] (1836) 7 C&P. 456
[8] AIR 1957 SC 857
[9] R., Madhumita. “Jurisdiction under IPC.” www.lawcirca.com. 17 July 2020, lawcirca.com/jurisdiction-under-ipc/. Accessed 15 Sep. 2021.
[10] The Constitution of India, 1950
[11] R., Madhumita. “Jurisdiction under IPC.” www.lawcirca.com. 17 July 2020, lawcirca.com/jurisdiction-under-ipc/. Accessed 15 Sep. 2021.
[12] (1812) 7 Cranch 116
[13] United Nations Privileges and Immunities Act. 1947
[14] The Indian Penal Code, 1856
[15] The Indian Penal Code, 1856
[16] AIR 1953 P H 227
[17] 1994 SCC OnLine Del 406
[18] Criminal Appeal No. 304 of 2012
[19](Crl.) No.6004 of 2006
[20] Criminal Procedural Code, 1973
[21] Anonymous. “Jurisdiction.” www.lawtimesjournal.in. 9 Apr. 2016, lawtimesjournal.in/jurisdiction-2/. Accessed 10 Sep. 2021.
Author: Sidhant Somani,
3rd year, Maharashtra National Law University Nagpur